Rosenthal v. Schaefer

Valente, J.

The complaint is attacked on the ground of insufficiency of allegation of performance of conditions precedent. The clause attacked reads: “ That the plaintiff herein, the landlord and lessor described in said lease, has duly complied with all the terms, covenants and conditions upon her part to be performed in accordance with the terms of the said lease.”

Rule 92 of the Rules of Civil Practice requires that the pleader allege that he “ duly performed all the conditions of such contract on his part.” It has been very strictly construed. I might say, paraphrasing the language of Presiding Justice Kelly in Berger v. Urban Motion Picture Industries, Inc. (206 App. Div. 379, 383), I am not prepared to say that “ complied with ” is not synonymous with “ performed.” “At any rate,” he continues, “ there is the plain language of the statute; it is easy to comply with it, if a plaintiff desires to take advantage of the rule, and I am not in favor of introducing variations and excuses and unsettling the law as laid down in the authorities.”

The motion is granted, without costs, with leave to amend within twenty days of the entry of the order, issue to remain as of the original date. Settle order.